Citation Nr: 1022363
Decision Date: 06/16/10 Archive Date: 06/24/10
DOCKET NO. 00-10 718 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for low back disability.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Barone, Counsel
INTRODUCTION
The Veteran had active service from July 1968 to October
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating determination of a
Regional Office (RO) of the Department of Veterans Affairs
(VA).
This case was previously before the Board, most recently in
June 2008, when the Board denied the claim on appeal. The
Veteran appealed the Board's June 2008 decision to the United
States Court of Appeals for Veterans Claims (hereinafter 'the
Court'). By Order dated April 2009, the Court vacated the
Board's June 2008 decision pursuant to an April 2009 Joint
Motion for Remand.
The Veteran was afforded a video conference hearing at the RO
in March 2002. This hearing was conducted by a Veterans Law
Judge who has since left the Board. In April 2006 the
Veteran was offered a new hearing but, in a reply letter
dated that same month, the Veteran declined to participate in
another hearing.
FINDINGS OF FACT
1. During his active duty service, the Veteran suffered an
injury to the low back involving probable damage to the discs
at L4-L5 and L5-S1.
2. The Veteran has periodically suffered low back
symptomatology since service.
3. The Veteran suffered a subsequent injury to his low back
as a result of an accident in 1994.
4. It is at least as likely as not that the Veteran's
current degenerative disc disease of the thoracolumbar spine
is causally related to the inservice low back injury.
CONCLUSION OF LAW
Degenerative disc disease of the thoracolumbar spine was
incurred in the Veteran's active duty service. 38 U.S.C.A.
§§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The issue on appeal involves a claim of service connection
for intervertebral disc disease, status post laminectomy.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service. 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred
in service alone is not enough; there must be chronic
disability resulting from that injury. If there is no
showing of a resulting chronic condition during service, then
a showing of continuity of symptomatology after service is
required to support a finding of chronicity. 38 C.F.R.
§ 3.303(b). Additionally, for veterans who have served 90
days or more of active service during a war period or after
December 31, 1946, certain chronic disabilities, such as
arthritis, are presumed to have been incurred in service if
manifest to a compensable degree within one year of discharge
from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307,
3.309. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
It is clear from the record that the Veteran has a current
diagnosis of intervertebral disc disease. The veteran's
primary contention in this case is that his current
intervertebral disc disease was caused by a back injury
suffered while lifting heavy equipment during his final week
of service in Vietnam in September 1969. The Veteran
acknowledges that there is no indication of such an injury in
the service medical records, but emphasizes that he promptly
complained of lower back pain at least as early as October
1969 when he originally filed his claim for service
connection. This proximately contemporaneous report of back
pain is documented in the record. The Board notes that the
Veteran has expressed concern that his testimony regarding
in-service injury may have been disbelieved by VA. To the
extent that the Veteran contends that he suffered a back
injury in the circumstances he describes in September 1969,
the Board finds no reason to doubt the sincerity and
credibility of the Veteran's testimony and notes that the
record reflects he did quickly report a back problem to VA
shortly thereafter.
However, the critical question in this case is not whether
the Veteran suffered a back injury during service as he
describes, but whether any injury suffered during service
caused the intervertebral disc disease which was diagnosed in
early 1995. The record shows, and the Veteran has
acknowledged, that the early 1995 diagnosis of his current
back disability followed a May 1994 accident in which the
Veteran injured his back while working. The Veteran has
testified that this more recent back injury was not serious;
he contends that his current back disability is associated
with a pathology dating back to his described in-service
injury and was not caused by any post-service incident. The
significance of the May 1994 accident to the Veteran's
current back disability has emerged as an essential medical
question in resolving this case.
The Board notes that the Veteran has offered credible
testimony regarding his injuries and experienced
symptomatology, and the Veteran is competent to provide such
evidence in this case for the Board's consideration.
However, with regard to questions involving medical
expertise, such as determinations of diagnosis or causal
etiology, the Board must rely upon medical professionals to
provide evidence. The Veteran has asserted that his current
back disability was caused by an in-service incident and not
by any post-service event. However, as a lay person, the
Veteran is simply not competent to interpret his history of
symptoms and draw medical conclusions about the diagnosis or
etiology of his back disability for the purposes of this
case. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
This should not be understood to suggest that the Veteran's
testimony is not considered sincere, only that the Board's
findings with regard to medical diagnosis and etiology of the
back disability must rely upon competent medical evidence and
not lay testimony.
Turning to the evidence, the medical documents and opinions
surrounding this matter create a complicated evidentiary
record containing conflicting elements. A November 1969 VA
examination report, and its associated x-ray report, found no
evidence of disease or injury of the Veteran's back at that
time. It appears that the Veteran saw a number of doctors in
connection with his lower back pain following his return from
Vietnam, and the Veteran has indicated that no consistent
diagnosis emerged from these consultations. Some of these
consultations and examinations are documented in the record,
including reports from November 1969, February 1970, and
September 1971. The Veteran also describes his back symptoms
and attempted treatments in significant detail in the
transcript of his December 1983 hearing testimony. In
particular, the hearing transcript includes the Veteran's
description of his own suspicions that he had an undiagnosed
neurological back injury at that time.
Of great significance in this case is the May 1994 accident
which involved back trauma; the record indicates that this
accident involved a step on a set of wooden stairs, or a
porch, collapsing under the Veteran causing him to fall
backwards. At his March 2002 hearing before a member of the
Board of Veterans Appeals, the Veteran testified that his May
1994 fall was 'slight' and 'relatively minor.' The Veteran
contends that the back disability which was medically
identified in the aftermath of his May 1994 fall was not
caused by the fall, but was a long-undiagnosed disability
which he had been experiencing ever since 1969.
Medical records, including private medical records from the
Veteran's doctors, suggest that the May 1994 fall was more
significant than the veteran describes. In particular, a
September 1995 medical report leading into back surgery
details the history of the back pathology; this report
indicates that the May 1994 fall resulted in 'immediate onset
of mid back pain which gradually progressed.' Additionally,
this report describes radiating pain down the Veteran's legs
with onset apparently associated with the May 1994 fall. In
early 1995, the Veteran was diagnosed with intervertebral
disc damage and underwent back surgery for this injury in
September 1995.
There have been three VA examinations of the Veteran's back
conducted in connection with this claim since the Veteran's
May 1994 accident. The three corresponding VA examination
reports draw three different conclusions regarding a possible
nexus between the Veteran's current back disability and his
service; the opinions also include some inconsistent
characterizations of the medical evidence of record.
In December 2000, a VA examiner opined that she 'presumed'
the current back disability is related to service based upon
her review of the claims folder and the timing of the
Veteran's first documented complaints of lower back pain.
This conclusion has some probative value, but is not
conclusive enough to be accorded substantial probative
weight. The examiner does not clearly indicate a medical
opinion with a clinical rationale for the conclusion, but
rather expresses a presumption following a history of back
pain. The word 'presumed' suggests at least a somewhat
speculative nature to the statement, rather than a conclusive
medical finding. The speculative nature of this statement,
even when authored by a medical professional, diminishes its
probative value. See Bostain v. West, 11 Vet. App. 124, 127-
28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993); see
also Warren v. Brown, 6 Vet. App. 4, 6 (1993). Additionally,
'presumed' indicates that the examiner had not identified an
adequate factual basis for clinically determining the
likelihood of a nexus. A bare conclusion, even one reached
by a medical professional, is not probative without a factual
predicate in the record. Miller v. Brown, 11 Vet. App. 345,
348 (1998).
In July 2004, another VA examination was conducted and the
report indicates that the examiner was unable to determine if
the current back disability was caused by an in-service
incident so long ago. As this report declines to offer an
answer to the medical question of nexus involved in this
case, no more discussion of this report is necessary to the
Board's analysis at this time.
Finally, an April 2005 VA examination report provides the
opinion that there is less than a fifty percent chance that
the Veteran's current back disability is related to service.
This April 2005 report, however, indicates that its
conclusion is based upon a review of the claims file that
revealed 'no evidence of the veteran seeking care for his
back up until the 1994 injury.' This statement suggests that
the April 2005 VA examination opinion may not have considered
the significant medical evidence related to the Veteran's
back pain prior to the May 1994 accident. Thus, this opinion
against the claim cannot be accorded significant probative
weight either; it is based upon a factual assertion which is
inconsistent with the record. Moreover, the evidence that the
Veteran sought treatment for back pain in the months and
years immediately following service was the entire basis for
the December 2000 examiner's speculative statement in support
of the Veteran's claim.
Thus, none of the VA examination reports offer a
substantially probative medical opinion on the question of
nexus in this case.
In support of his claim, the Veteran has submitted a March
2002 statement from his private neurosurgeon. This evidence
was submitted specifically to support the Veteran's
contention that limitations in medical technology during the
years following his in-service injury could have obscured his
back pathology from medical professionals and from accurate
diagnosis. In response to questions submitted by the
Veteran, the neurosurgeon opines that 1) the Veteran's
herniated discs were difficult to detect even with modern
medical imaging technology, 2) ruptured discs do not
generally show up on plain x-rays, 3) herniated discs could
have been difficult to diagnose in the years following the
Veteran's service, and 4) it is possible for herniated discs
to manifest in the pattern of pain exhibited by the Veteran
following service and to not include radiating pain down the
back of a leg.
The Board's review of the above-discussed evidence, combined
with the credible and consistent testimony of the Veteran
over time, led the Board to believe that an adequate medical
opinion was necessary to clarify the record in this case and
give the Veteran's claim every consideration. In June 2006,
the Board sought a VHA medical advisory opinion to provide
adequate clarity as to the medical facts in this case and to
determine if there was any medical basis for finding a nexus
between the Veteran's current intervertebral disc disease and
his service. However, the April 2009 Joint Motion for Remand
explains that the obtained VHA medical advisory opinion is
inadequate to provide the competent medical determination
needed for the Board to decide this appeal. Under the
circumstances, the Board finds no reason to further discuss
this VHA medical opinion, which plays no role in the
decision reached in this case.
Following the April 2009 Joint Motion for remand, the Board
sought a new independent medical opinion to develop adequate
medical evidence addressing the conflicting evidence in this
matter and answering the essential medical questions at
issue. The result of the Board's November 2009 solicitation
of an independent medical opinion is a report signed by a
specialist in neurosurgery. This report discusses the facts
of the Veteran's in-service injury, the in-service documented
evidence, the post-service documented evidence, post-service
history, the May 1994 injury, and the chronology of the
diagnosis of the Veteran's current back disability. The
neurosurgery expert opined that the Veteran's chronic lumbar
spondylotic degenerative disc disease is long standing.
Further, he discussed that the Veteran's symptoms prior to
the injury episode in 1994 were consistent with a lumbar disc
injury sustained in the July 1968 episode. The expert opined
that the Veteran sustained a lumbar strain when lifting the
battery from the boat in a stooped position during service,
and that this 'probably' injured discs at L4-5 and L5-S1 as
the initial disc injury; the examiner cited the facts that
low back pain had onset at that time and then persisted
throughout the years.
The authoring expert explained that MRI technology was not
available when the Veteran's complaints were initially
evaluated. Thus, the expert explains that the diagnosis
could not have been appreciated by physicians at that time.
The expert opines that the injury event of July 1968 as
described by the Veteran is consistent with force strain
applied to lumbar spine that could cause tears in annular
ligaments at discs of L4-L5 and L5-S1. Taking all of the
information into account, the expert concluded that "[t]here
is greater than 50% probability that lumbar strain incurred
by lifting battery out of hold of a boat while in stooped
position would cause injury to L4-5 or L5-S1 discs that would
result in chronic low back and intermittent sciatic radiating
symptoms." The expert explains that the Veteran would have
been vulnerable to further disc injury and disc rupture as a
result of this, particularly with continued lifting, bending,
and straining that accompanies manual labor. Most
significantly, the independent medical expert concluded that
the Veteran's current lumbar disc disease is etiologically
related to the Veteran's service.
The Board finds that this support medical opinion is adequate
and probative to resolve the essential questions raised in
this appeal. With consideration of all of the pertinent
evidence and facts, the expert presents a thorough discussion
and rationale supporting a finding that the Veteran's current
lumbar disc disease is probably etiologically linked to
service. The Board finds that this opinion is adequate and
persuasive, in light of a broad review of the other
conflicting indications of record, to resolve this appeal in
the Veteran's favor.
In sum, after weighing the positive evidence with the
negative evidence, the Board believes that a balance of such
evidence exists so as to warrant entitlement to service
connection under the provisions of 38 U.S.C.A. § 5107(b).
The evidence does not clearly compel such a grant, but there
is such a state of equipoise of the evidence to warrant
application of the doctrine of reasonable doubt.
In closing, there is no need to undertake any review of
compliance with the Veterans Claims Assistance Act of 2000
(VCAA) and implementing regulations in this case since there
is no detriment to the veteran as a result of any VCAA
deficiency in view of the fact that the full benefit sought
by the Veteran is being granted by this decision of the
Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107;
38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). He will
have the opportunity to initiate an appeal from these
'downstream' issues if he disagrees with the determinations
which will be made by the RO in giving effect to the Board's
grant of service connection.
ORDER
Service connection is warranted for degenerative disc disease
of the thoracolumbar spine. To this extent, the appeal is
granted.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs